(cell phone 240-506-1556)

To: All veterans

Date: 2015

From:

Topic: Clear and Unmistakable Error (CUE)

Independent Veteran Medical Opinion (IMO)

Veteran Medical Nexus Opinion (VMNO)

for Veteran benefits

Craig N. Bash, M.D.

Neuro-Radiologist
www.veteransmedadvisor.com

NPI or UPIN-1225123318- lic #--D43471

4938 Hampden lane, Bethesda, MD 20814
Phone: (301) 767-9525 Fax: (301) 365-2589
E-Mail: drbash@doctor.com

CUE (pronounced - Q)
CUE is a way for the VA to correct a prior incorrect assignment of past medical diagnostic codes
(AKA Rating) but for a retroactive correction to be made the code errors have to be obvious and
un-debatable. Plus, these errors cannot involve judgment or interpretations of the rate code;
therefore, CUE type errors usually fit into the category of omission, as the VA is responsible to
both gather/collate and review all records. Occasionally the VA does not gather all the records
or does not review them adequately- all the way back to the inception of the claim to determine
early codes and early effective dates. Also, occasionally the VA fails to apply the correct rules
that were in effect at the time of the rating- not an interpretation of the code but an omission to
apply the correct code.
These CUE errors can be initiated at the request of the veteran or can be initiated by the VA in
their quality review process. (I currently have noticed a increase in the number of VA initiated
cases for patients who have either a single 40% rating or a single 60% rating. Of course, it is
well known that a single 40% rating will qualify a patient for TDIU eventually, if the patients
disabilities worsen with age and aggregately total 70% and the patient cannot work due to their
VA related disabilities. Like wise, a single 60% rating will also qualify a patient for TDIU again if
they cannot work due to their VA related disabilities).
Usually a CUE error is noticed when a final award decision is made and the veteran has
documentation of a specific approved diagnostic code. Then the veteran patient looks in his
records and sees the same diagnosis or a secondary diagnosis many years early. This usually
results in an error to assign the correct diagnostic code.
A second common error occurs by not assigning the correct effective date for all medical
diagnostic codes due to an inadequate longitudinal record review by the VA rater. A correct
effective date, of course, requires a careful look-back of records often over many decades,
which usually amounts to 1000s of pages of medical records. As an aside, the largest case I

have ever seen filled 5 bankers boxes. (The VA is attempting to prevent/ameliorate this error by
mandating the new intent to file form, which will establish new more recent effective dates.) The
rater often, in his 2-hour case analysis window, simply does not have time to do a complete
review of each patients 1000s of pages of historical records. The current electronic record
might even make this historical review more difficult as often currently the historical records are
mislabeled/mis-dated in the VA electronic Index system (source: Retiring BVA administrative law
Judge and a 29 year BVA veteran service organization (VSO) member).
Another common error is not recognizing the medical terms used historically. Medical terms
have changed over time and the newly more scientifically sophisticated terms were generalized
ideas many decades ago. (Please note that medical knowledge is currently doubling on a twoyear cycle.) This medical knowledge interpretation error was less of a problem in the past as the
VA used a ratings board, which contained a physician, but currently non-physicians do all the
claims reviews. This dubbing down of the expertise/training/experience of the medical support
staff in the VA claims process is responsible for the recent increases in CUE errors. An
example is useful here: therefore, I have discussed a recent case from my files below:
Pt X was a parachutist and had 69 parachute jumps in service and of course then
developed back pain. He had service time x-rays that showed normal vertebral
bodies and disc spaces with bilateral pars defect. He exited the service with a
normal exit interview by a nurse practitioner. Following service within1 month he put
in a claim for low back injury- as he documented back trouble on his exit physical SF
form. His claim was denied because of his normal exit interview by the nurse.
Many years later he developed excruciating low back pain, leg numbness and leg
weakness with loss of bowel and bladder function. His post service job was working
at his administrative desk. He did not have any intervening injuries or accident. His
MRI imaging showed advanced lumbar spine disease with slippage (spondylolisthesis) of L4 on L5 of grade 3. He re-submitted a claim, which was again denied.
I reviewed the claim under the CUE concept and found the bilateral pars
defect/fracture (spondylo-lysis) in service, which was not noted by the rater in the
first or second claims after service CUE error. (n.b. that slippage is called
spondylo-listhesis and the pars fracture/defect is called a slightly differently spelled
word of spondylo-lysis).
*** The claims file clearly contained the pars fracture/defect information and the rater simple did
not read it or did not know what he/she was reading when they saw the words pars defect.
(The Old axiom applies.. You see what you look for AND you only look for what you
know. I have found that in general that raters often do not carefully read x-ray reports,
especially the clinical indication history sections.)
A pars defect in a parachutist is likely a pars fracture caused by parachuting and his bilateral
fracture was the cause of his back pains in service and the most likely cause of his later in life
slippage of L4 on L5. This is where the analysis by a physician is vital to the claim as it provides
a value added work product namely the origin and significance of his pars defect. In my
experience, the need for this type of interpretation occurs frequently.

The above CUE errors all required full a record review by a high level GS-13 VA rater - called a
DRO. In his review, the DRO would normally analyze the 3 CUE elements steps, which are
defined legally and practically as follows:

Legal CUE:
(a) Error. Previous determinations which are final and binding, including decisions
of service connection, degree of disability, age, marriage, relationship, service,
dependency, line of duty, and other issues, will be accepted as correct in the
absence of clear and unmistakable error. Where evidence establishes such
error, the prior decision will be reversed or amended. For the purpose of
authorizing benefits, the rating or other adjudicative decision, which constitutes
a reversal of a prior decision on the grounds of clear and unmistakable error
has the same effect as if the corrected decision had been made on the date of
the reversed decision. Except as provided in paragraphs (d) and (e) of this
section where an award is reduced or discontinued because of administrative
error or error in judgment, the provisions of 3.500(b)(2) will apply.
Practical CUE:
All three of the following must be present
(1) Either the correct facts, as they were known at the time, were not before the adjudicator (i.e.,
more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory
or regulatory provisions in existence extant at the time were incorrectly applied.
(2) The error must be "undebatable" and of the sort "which, had it not been made, would have
manifestly changed the outcome at the time it was made," (i.e. The patient would be eligible for
an increase in benefits if not, then the CUE issues is harmless and results in a moot point.)
(3) The CUE must be based on the record and law that existed at the time of the prior adjudication in
question.

****If all of the above three elements are true then the rating decision contains a CUE type error
and will be reversed- with the establishment of a retro-active payment date (effective date).
As a stated in my prior SMC BulletinMany internet blogs state that the CUE process is
impossible to navigate and obtain a corrected rating- this is not true- but the CUE process does
depend on a careful longitudinal review of the entire medical record. Such a review by a
physician is essential because the civilian medical sector utilizes 65,000+ ICD-10 payment
diagnostic codes. Hence, a physician is needed to analyze/interpret all old diagnostic codes
and medical clinic notes to look for analogous VA codes. In other words, the physician must in
essence merge the VAs 2000 regular codes and 60 SMC codes with the civilian 65,000+ ICD10 codes in order for the DRO to do a reversal of past ratings by way of a new staged rating.
The CUE process should really be a joint work product between a DRO and an experienced
physical due to the complexities of the historical medical record which involves a changing
disease process which simultaneously must also be merged with a time changing set of VA
rating rules.

Recommendations:
1. All SMC patients should pursue CUE errors after consulting a medical expert if a formal grant of
any award involves a short retro-active effective date or if their claims are complex/extend over
many decades as these are areas where the VA is likely to make CUE errors. The VA rater in
these cases simply gets overwhelmed with the complexity/volume of medical evidence and thus
cannot review the claims file in the allotted 2 hour time window.
2. If pursing CUE, the patient needs both an experienced administrative benefits representative
and an experienced physician, as these cases are the most complex in the VA system! As a
testament to their complexity, please note that the CUE errors are only analyzed within the VA
by experienced high level DROs.
FYI *** remember VA has a new policy of No Form No Benefit (NFNB) so please do your
forms as carefully as possible and use an administrative accredited agent and use an
experienced physician for SMC DBQ forms for a maximally correct VA medial diagnostic code
(rating).
Craig Bash M.D. Associate Professor
drbash@doctor.com cell 240-506-1556
Independent Veteran Medical Opinion (IMO)
Veteran Medical Nexus Opinion based on Veterans medical records for veteran benefits
Short list of SMC codes:
Eligibility for Specific Levels of SMC
To receive an SMC (k) award you must have one of the following:

Anatomical loss (or loss of use) of:

o One hand
o One foot
o Both buttocks (where the applicable bilateral muscle group prevents the individual from maintaining
unaided upright posture, rising and stooping actions)
o One or more creative organs used for reproduction (absence of testicles, ovaries, or the creative
organ, loss of tissue of a single breast or both breasts in combination) due to trauma while in the
service, or as a residual of service-connected disabilities
o One eye (loss of use includes specific levels of blindness)
Complete organic aphonia (constant loss of voice due to disease)
Deafness of both ears that includes absence of air and bone conduction

To receive an SMC (l) award you must have one of the following:

Anatomical loss (or loss of use) of:

o Both feet
o One hand and one foot
Blindness in both eyes with visual acuity of 5/200 or less
Permanently bedridden
Regular need for aid and attendance

To receive an SMC (m) award you must have one of the following:

Anatomical loss (or loss of use) of:

o Both hands
o Both legs at the region of the knee
o One arm at the region of the elbow with one leg at the region of the knee
Blindness in both eyes, having only light perception
Blindness in both eyes resulting in the need for regular aid and attendance

To receive an SMC (n) award you must have one of the following:

Anatomical loss (or loss of use) of both arms at the region of the elbow
Anatomical loss of both legs so near the hip that it prevents the use of a prosthetic appliance
Anatomical loss of one arm so near the shoulder that it prevents the use of a prosthetic appliance, along
with the anatomical loss of one leg so near the hip that it prevents the use of a prosthetic appliance
The anatomical loss of both eyes, or blindness in both eyes that includes loss of light perception

To receive an SMC (o) award you must have one of the following:

Anatomical loss of both arms so near the shoulder that it prevents the use of a prosthetic appliance
Bilateral deafness (both ears) rated at least 60% disabling, along with service-connected blindness
with visual acuityof 20/2000 or less in both eyes
Complete deafness in one ear or bilateral deafness rated at least 40% disabling, along with serviceconnected blindness in both eyes that includes loss of light perception
Paraplegia-paralysis of both lower extremities, along with bowel and bladder incontinence
Helplessness due to a combination of loss (or loss of use) of two extremities with deafness and blindness,
or a combination of multiple injuries causing severe and total disability

To receive an SMC (p) award you must have one of the following:

Anatomical loss (or loss of use) of a leg at or below the knee, along with the anatomical loss (or loss of use)
of the other leg at a level above the knee
The anatomical loss (or loss of use) of a leg below the knee, along with the anatomical loss (or loss of use)
of an arm above the elbow
The anatomical loss (or loss of use) of one leg above the knee and the anatomical loss (or loss of use) of
one hand
Blindness in both eyes, meeting the requirements listed for SMC (l), (m) or (n)

To receive an SMC (r) award you must:

Be receiving the maximum SMC (o) benefits and require:

o Aid and attendance, or
o Aid and attendance of another person without which you would require hospitalization, nursing
home care or other residential type care

To receive an SMC (s) (Housebound) award, you must either:

Meet all of the following:

o You have a service-connected disability rated at 100%
o You have a qualifying, additional service-connected disability (or disabilities) that is completely
separate from the first disability and is independently rated at 60%
o You are approved for VA disability compensation

Be housebound:
o Your disabilities must directly cause you to be substantially confined to your home and the
immediate premises or, if you are in an institution, to the ward or clinical areas
o Also, it must be reasonably certain that your disability or disabilities and confinement will continue
for the rest of your life

OR

To receive an SMC (t) award you must:

Need regular Aid and Attendance (A&A) for the residuals of (results of) Traumatic Brain Injury (TBI)
Not be eligible for a higher level of A&A under SMC (r)(2)
Need hospitalization, nursing home care, or other residential institutional care without in-home A&A

Eligibility for Aid and Attendance

Usually, you may qualify for regular Aid and Attendance (A&A) benefits based on any of the following
circumstances:
You need the regular help of another person to perform everyday living activities, adjust prosthetic devices,
or protect yourself from the hazards of your daily environment. Even if you are able to perform some of
those functions, you may still be able to qualify for A&A, because the VA will consider the particular
personal functions that you are unable to perform in connection with your condition as a whole.
You are bedridden because your disability (or disabilities) requires you stay in bed, not because of any
treatment you have had, such as surgery; OR
You are a patient in a nursing home because of a mental or physical incapacity; OR
You are blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or have
concentric contraction of the visual field to 5 degrees or less.